High-Level Ministerial Conference
Criminal justice response
to radicalisation
BRUSSELS, 19 October 2015
Organised together with
BACKGROUND DOCUMENT
Introduction
The European Council on 12 February 2015 highlighted the need for new initiatives on
‘rehabilitation in the judicial context to address factors contributing to radicalisation, including
in prisons’. In April 2015, the Commission presented an EU Agenda on Security focusing on
areas in which the EU can make a difference when it comes to fighting terrorism and
preventing radicalisation and in the Council Conclusions on the Renewed EU Internal Security
Strategy 2015-2020 adopted in June, Member States confirmed their commitment to working
on this issue. These documents provide a basis for cooperation and joint action in the next
five years. Priorities for action include preventing radicalisation in prisons and developing
effective de radicalisation and disengagement programmes.
In June 2015, the European Parliament presented a draft report on preventing the
radicalisation and recruitment of European citizens by terrorist organisations. It calls for an
exchange of best practices between Member States, the issuing of guidelines on preventing
radicalisation in prisons and on training for practitioners, and the development of
rehabilitation programmes. The report is due to be adopted at the plenary session in
November 2015.
EU Justice Ministers have also placed rehabilitation in the judicial context high on their list of
priorities. They discussed the topic in the context of the JHA Council on 13 March 2015 and
agreed that a debate at EU level would provide useful support for national efforts to counter
radicalisation in prisons and elsewhere. There was a general readiness to share experiences
on how to address the issue of foreign fighters and returnees.
1
It is against this background that the Commission has organised this High-level conference
bringing together Justice Ministers, members of the European Parliament, legal practitioners,
prison administrators, government officials and relevant organisations and EU institutions to
discuss radicalisation in the prison context and the idea of integrating rehabilitation into the
criminal justice response to foreign fighters with a view to explore options in European
criminal justice systems for dealing with foreign fighters, returnees and other violent religious
extremists with terrorist motives.
The role of criminal justice systems in the de-radicalisation, disengagement and/or
rehabilitation of foreign fighters
Member States are confronted with complex policy choices when deciding on an appropriate
response to the phenomenon of foreign fighters and radicalisation. These choices do not only
relate to individuals who have already joined terrorist groups and committed crimes. As a
result of the extended criminalisation of terrorist acts in UNSC Resolution 2178 and the
Additional Protocol to the European Convention on the Prevention of Terrorism, they must also
cover aspiring/potential foreign fighters who are active in social media and gather
information, plan to travel abroad for the purpose of terrorism, or undergo training to join
such groups, and those who provide financial or other support.
Faced with increasing numbers of individuals who may be subject to criminal proceedings, the
judiciary and law-enforcement authorities have to re-assess what are appropriate
punishments for such crimes and whether alternative sanctions may be possible and
desirable.
Prosecution, sentencing and detention
To date, Member States have dealt with the problem from the criminal justice angle mainly by
criminalising terrorist acts and then prosecuting and detaining (aspiring) foreign fighters.
While this approach may have a strong deterrent effect and prevents terrorists from posing a
direct threat to society while detained, it could also have unintended consequences. For
example, the threat of prosecution may discourage certain individuals from returning who
would otherwise be valuable sources of intelligence or be persuaded to delegitimise terrorist
groups and actively support counter-narratives among their peers. Also, if aspiring foreign
fighters are likely to be prosecuted, their relatives may be more reluctant to alert the
authorities to signs of radicalisation and preparation.
More prosecutions for terrorist offences will inevitably mean more prison sentences and this
poses additional challenges. Prisons are often referred to as breeding grounds for
radicalisation, an environment in which offenders — especially juveniles and those convicted
for minor crimes — may be particularly vulnerable to indoctrination and recruitment by
extremist groups. The current overcrowding in many EU prisons is exacerbating the problem
and a lack of financial and human resources often means that prisoners are not monitored
sufficiently (so crucial opportunities to detect violent extremism may be missed) and hampers
the development of programmes whereby prison chaplains/imams and counsellors can
provide guidance and support.
2
Many Member States are examining how their prisons should be organised so as to prevent
the spread of radical ideas that may attract followers and lead to violent extremism. Tests
have been conducted, pre-trial and post-trial, to determine whether (potential) terrorist
prisoners should be kept together or allowed to mix with the rest of the prison population.
There is no easy answer. Mixing can lead to contacts being made with other criminal networks
or to vulnerable prisoners being indoctrinated. Isolation can reinforce extremist views, have a
stigmatising effect leading to frustration and anger among inmates and their communities,
and make post-release reintegration less likely. Also, those who are stripped of rights in a
high security environment may acquire hero or martyr status, particularly in the case of pretrial detainees who are to be presumed innocent. Other matters for prison administrations to
address include specialised staff training to detect signs of radicalisation, and cooperation
with community and religious leaders.
It should be underlined, however, that prisons can also play a positive role in tackling
radicalisation and terrorism and have served as incubators for peaceful change, including
processes leading to reconciliation with victims. If supported properly, the special
circumstances of detention and isolation from the outside world can allow for self-reflection
and openness to change, and inmates may be more disposed to participate in rehabilitation
programmes. Such programmes are crucial if efficient use is to be made of the time served in
detention and prisoners are to be reintegrated into society on their release.
Rehabilitation and alternative sanctions
The risk of individuals becoming further radicalised in prison has led practitioners and policy
makers to reflect on other approaches. The EU Counter-Terrorism Coordinator has suggested
that alternatives be explored to prosecuting and imprisoning returning foreign fighters; these
could include rehabilitation and reintegration programmes.
Some Member States have pursued more liberal policies in this area, with case by case
approaches taking into account the range of foreign fighters' and returnees' profiles .
Obviously, where it is proven that individuals have actively supported or engaged in serious
terrorism related offences (e.g. belonging to a terrorist organisation, involvement in murder or
other violent crimes), they will be prosecuted and sentenced. Other types of offender,
however, may benefit from social inclusion and psychological counselling under targeted
rehabilitation programmes.
Such programmes may be an important complement to law enforcement responses. The
underlying principle is that returnees should not all be treated as lifelong extremists, but that
some may abandon their violent intent, behaviour and/or beliefs and take a different path.
Rehabilitation programmes also provide opportunities to monitor individuals, learn more about
religious radicalisation and understand foreign fighters' motives.
However, some fear that such a 'soft' approach might encourage higher numbers of foreign
fighters to return. There may also be a risk that individuals with violent intentions or who do
not want to be reintegrated will slip through the net.
There is also the question of what form rehabilitation programmes should take. Should they
challenge ideology or focus more on social and emotional issues that put a person at risk? In
3
other words, should the aim be de-radicalisation (whereby individuals change their views,
attitudes and belief systems) or disengagement (whereby they remove themselves from
extremist environments)?
In Member States that have experience of such programmes, there is a growing tendency to
address behavioural factors rather than beliefs and ideologies, with an emphasis on
relationships and opportunities to reintegrate into society. Increasingly, programmes focus on
returnees’ families and life skills, and acknowledge the importance of social and family ties in
reintegrating foreign fighters and returnees. The community and the probation services have
key roles to play in the development and execution of rehabilitation programmes.
New challenges for criminal justice actors
Judges and prosecutors in the EU are increasingly involved in the response to foreign fighters
by virtue of having to prosecute those alleged to have engaged in terrorist activities. The
dynamics with which they are confronted may differ from those in ordinary criminal cases
and balancing public protection with integration is key. At the same time, they must guarantee
a fair trial and ensure that sentencing policies uphold fundamental rights at all times.
In view of the new challenges for legal practitioners, serious thought should be given to the
possibility of incorporating rehabilitation into criminal justice responses to foreign fighters.
Rehabilitation programmes can play a role at various stages in criminal proceedings: these
programmes could potentially be used as a condition to release from pre-trial detention, as a
condition for a suspended prison sentence, as part of a prison sentence or in case of
conditional release. To enhance their effectiveness, rehabilitation programmes might be
combined with other supervision measures such electronic tagging, reporting to the police,
interdiction to enter certain locations or prevention to travel abroad.
Judicial authorities may also decide to divert a suspect from the criminal justice system –
instead of prosecuting they would order the enrolment of the suspect in a rehabilitation
programme. Moreover, considering that it is extremely difficult to collect evidence of crimes
committed by foreign fighters (especially in warzones in Syria and Iraq) prosecution will often
not be possible. In these cases, judicial authorities may need to alert the social services case
by case to ensure ongoing monitoring of the terrorism-related vulnerability risk.
A flexible approach in criminal proceedings might give terrorist suspects and others incentives
to cooperate in counterterrorism investigations and prosecutions. This was illustrated in a
recent German case in which the judge reduced the sentence in exchange for a public
confession and intelligence about Islamic State's command structure.
Risk assessments
Many Member States are seeking ways of distinguishing between the various levels of threat
foreign fighters may pose. Returnees are a heterogeneous category – individuals may be
dangerous, traumatised, in need of mental support, or disillusioned and ready for
reintegration. Failure to identify those who might, with assistance, be able to return to a
'normal life' could lead to their further radicalisation. There is therefore a real need for
efficient risk assessment tools to help judges and prosecutors to decide on a sentence and
4
prison authorities to determine detention arrangements.
It is unclear whether the same tools can be used for violent extremism as for other serious
crimes, or whether something more specific is needed. What is evident is that successful risk
assessment will depend on close cooperation between intelligence services, the police, judicial
authorities, probation officers, social workers, religious scholars, communities and schools. It
is also essential that professionals are properly trained in carrying out risk assessments.
***
5